Filed: Oct. 03, 2013
Latest Update: Mar. 28, 2017
Summary: 12-2779 Perez-Hernandez v. Holder BIA Montante, IJ A098 927 893 A088 935 072 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON
Summary: 12-2779 Perez-Hernandez v. Holder BIA Montante, IJ A098 927 893 A088 935 072 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONI..
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12-2779
Perez-Hernandez v. Holder
BIA
Montante, IJ
A098 927 893
A088 935 072
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 3rd day of October, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
OSCAR UBALDO PEREZ-HERNANDEZ, FELIZA
TINOCO GRANADO,
Petitioners,
v. 12-2779
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Anne E. Doebler, Buffalo, New York.
FOR RESPONDENT: Stuart F. Delery, Principal Deputy
Assistant Attorney General; Paul
Fiorino, Senior Litigation Counsel;
Zoe J. Heller, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DISMISSED in part and DENIED in part.
Oscar Ubaldo Perez-Hernandez, a native and citizen of
Guatemala, and his wife Feliza Tinoco Granado, a native and
citizen of Nicaragua, seek review of a June 15, 2012,
decision of the BIA affirming the September 10, 2010,
decision of Immigration Judge (“IJ”) Philip J. Montante,
which pretermitted Perez-Hernandez’s application for asylum
as untimely and denied his applications for withholding of
removal and relief under the Convention Against Torture
(“CAT”).1 In re Oscar Ubaldo Perez-Hernandez, Nos. A098 927
893 & A088 935 072 (B.I.A. June 15, 2012), aff’g Nos. A098
927 893 & A088 935 072 (Immig. Ct. Buffalo Sept. 10, 2010).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
1
Perez-Hernandez included Tinoco Granado as a
derivative asylum applicant.
2
We consider both the IJ’s and the BIA’s opinions “for
the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233,
237 (2d Cir. 2008). The applicable standards of review are
well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
Under 8 U.S.C. § 1158(a)(3), no court shall have
jurisdiction to review the agency’s finding that an asylum
application was untimely under § 1158(a)(2)(B) unless a
petition raises a constitutional claim or question of law.
See id. § 1252(a)(2)(D). Although Perez-Hernandez’s
challenge to the agency’s pretermission of asylum raises a
question of law – whether incidents of alleged harm
occurring after an application is filed may constitute
“changed circumstances” to excuse the application’s
untimeliness – we decline to consider this argument because
he failed to raise it before the agency. See Lin Zhong v.
U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
Accordingly, as Perez-Hernandez has failed to raise a
justiciable question of law or constitutional claim, we
dismiss the petition in part as to asylum.
For applications such as Perez-Hernandez’s, governed by
the amendments to the Immigration and Nationality Act
3
imposed by the REAL ID Act of 2005, the agency “may rely on
any inconsistency or omission in making an adverse
credibility determination as long as the ‘totality of the
circumstances’ establishes the applicant is not credible.”
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
(emphasis in original) (citing 8 U.S.C.
§ 1158(b)(1)(B)(iii)); see also 8 U.S.C. § 1231(b)(3)(C)
(applying the § 1158(b)(1)(B)(iii) standard to withholding
of removal). This Court defers to agency credibility
determinations “unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
Here, substantial evidence supports the agency’s
adverse credibility determination. In his brief, Perez-
Hernandez fails to meaningfully contest the agency’s broad
finding that his testimony was incredible because his
application omitted facts material to his claim – the
continued threats by gang members after he fled Guatemala
City. Rather, Perez-Hernandez contends that he provided
reasonable explanations for specific inconsistency and
omission findings – for example, although his testimony
4
contradicted Tinoco Granado’s whether gang members entered
his home, they may have been discussing different events,
and although his application failed to mention his testimony
that gang members “spray[ed his] parents’ house with
gunfire,” his application mentioned generally that he was
“threatened.” However, these explanations are insufficient
to compel the conclusion that his testimony was credible, as
the omissions and inconsistencies were materially related to
his claim. Cf. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005).
To the extent Perez-Hernandez contends that the
agency’s adverse credibility determination was not ripe for
review, that contention lacks merit because the agency’s
determination was a dispositive basis for denying his
applications for relief. See 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin, 534 F.3d at 167. As the only evidence of a
threat to Perez-Hernandez’s life or freedom depended upon
his credibility, the agency did not err in denying
withholding of removal and CAT relief. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
Given our disposition in this case, we decline to reach
5
Perez-Hernandez’s additional arguments. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976).
For the foregoing reasons, the petition for review is
DISMISSED, in part, and DENIED, in part. As we have
completed our review, any stay of removal that the Court
previously granted in this petition is VACATED, and any
pending motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
